certified question answered

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term

FILED November 6 2013

No 12-0507 released at 300 pm RORY L PERRY II CLERK

SUPREME COURT OF APPEALS OF WEST VIRGINIA

JOSEPH KUBICAN Plaintiff Below Petitioner

V

THE TAVERN LLC dba BUBBArsquoS BAR AND GRILL AND HARRY WISEMAN

Defendants Below Respondents

Certified Question from the Circuit Court of Harrison County Honorable Thomas A Bedell Judge

Civil Action No 11-C-231-2

CERTIFIED QUESTION ANSWERED

Submitted September 25 2013 Filed November 6 2013

Edmund L Wagoner Gregory H Schillace David E Goddard Schillace Law Office Goddard amp Wagoner Clarksburg West Virginia Clarksburg West Virginia Attorney for the Respondent Attorneys for the Petitioner The Tavern LLC

dba Bubbarsquos Bar and Grill

JUSTICE DAVIS delivered the Opinion of the Court

SYLLABUS BY THE COURT

1 ldquoThe primaryobject in construing a statute is to ascertain and give effect

to the intent of the Legislaturerdquo Syllabus point 1 Smith v State Workmenrsquos Compensation

Commissioner 159 W Va 108 219 SE2d 361 (1975)

2 ldquoWhen a statute is clear and unambiguous and the legislative intent is

plain the statute should not be interpreted by the courts and in such case it is the duty of the

courts not to construe but to apply the statuterdquo Syllabus point 5 State v General Daniel

Morgan Post No 548 Veterans of Foreign Wars 144 W Va 137 107 SE2d 353 (1959)

3 ldquoA statute that is ambiguous must be construed before it can be appliedrdquo

Syllabus point 1 Farley v Buckalew 186 W Va 693 414 SE2d 454 (1992)

4 ldquoIn the interpretation of statutory provisions the familiar maxim

expressio unius est exclusio alterius the express mention of one thing implies the exclusion

of another appliesrdquo Syllabus point 3 Manchin v Dunfee 174 W Va 532 327 SE2d 710

(1984)

i

5 W Va Code sect 31B-3-303 (1996) (Repl Vol 2009) permits the

equitable remedy of piercing the veil to be asserted against a West Virginia limited liability

company

6 ldquo[T]o lsquopierce the corporate veilrsquo in order to hold the shareholder(s)

actively participating in the operation of the business personally liable there is normally

a two-prong test (1) there must be such unity of interest and ownership that the separate

personalities of the corporation and of the individual shareholder(s) no longer exist (a

disregard of formalities requirement) and (2) an inequitable result would occur if the acts are

treated as those of the corporation alone (a fairness requirement)rdquo Syllabus point 3 in part

Laya v Erin Homes Inc 177 W Va 343 352 SE2d 93 (1986)

7 To pierce the veil of a limited liability company in order to impose

personal liability on its member(s) or manager(s) it must be established that (1) there exists

such unity of interest and ownership that the separate personalities of the business and of the

individual member(s) or managers(s) no longer exist and (2) fraud injustice or an

inequitable result would occur if the veil is not pierced This is a fact driven analysis that

must be applied on a case-by-case basis and pursuant to W Va Code sect 31B-3-303(b)

(1996) (Repl Vol 2009) the failure of a limited liability company to observe the usual

ii

company formalities or requirements relating to the exercise of its company powers or

management of its business may not be a ground for imposing personal liability on the

member(s) or manager(s) of the company

iii

Davis Justice

This action presents this Court with a certified question from the Circuit Court

of Harrison Countyasking whether ldquoWest Virginiarsquos version of the Uniform Limited liability

Company Act codified at W Va Code sect 31B[-1-101] et seq afford[s] complete protection

to members of a limited liability company against a plaintiff seeking to pierce the corporate

veilrdquo After considering the partiesrsquo briefs their oral arguments and the relevant law we

answer this certified question in the negative

I

FACTUAL AND PROCEDURAL HISTORY

Following an altercation that allegedly took place at Bubbarsquos Bar and Grill in

Bridgeport West Virginia on February 7 2011 petitioner Joseph Kubican who is the

plaintiff below (hereinafter ldquoMr Kubicanrdquo) filed a complaint on May 27 2011 naming as

defendants Bubbarsquos Bar and Grill and Harry Wiseman1 The complaint asserted three counts

against Bubbarsquos Bar and Grill (1) negligence (2) negligent training and supervision of bar

staff and security personnel and (3) gross negligence willful wanton and reckless

misconduct Mr Kubican subsequently learned that Bubbarsquos Bar and Grill was a fictitious

1Mr Wiseman allegedly had been involved in the February altercation Two counts were asserted against Mr Wiseman (1) assault and battery and (2) malicious willful wanton and reckless misconduct Mr Wiseman is not participating in this appeal insofar as none of the issues herein raised pertain to the claims asserted against him

1

name used for business purposes by the respondent The Tavern LLC (hereinafter ldquoThe

Tavernrdquo) Additionally Mr Kubican learned that James Paugh and Lawson Mangum were

the only members of The Tavern Following the exchange of written discovery and the

deposition of Lawson Mangum pursuant to Rule 30(b)(7) of the West Virginia Rules of Civil

Procedure Mr Kubican sought leave to amend his complaint2 The purpose of the proposed

amended complaint was to (1) utilize the proper company name (2) add as defendants the

individual members of The Tavern James Paugh and Lawson Mangum (hereinafter ldquoPaugh

and Mangumrdquo) and (3) assert a veil piercing count against Paugh and Mangum The

proposed amended complaint also reasserted the three negligence counts against the business

entity that had been included in the original complaint3

The proposed amended complaintrsquos veil piercing count against Paugh and

Mangum alleged that Paugh and Mangum (1) as the only members of The Tavern exercised

full control over the company and actively participated in its management (2) held

themselves out to others as the owners of The Tavern dba Bubbarsquos Bar and Grill (3) held

themselves out as personally responsible for the debts of the company (4) commingled

personal funds with those of the company (5) used the company to conduct personal

business (6) used the company as a conduit to procure business and services for related

2See W Va R Civ P 15(a)

3The proposed amended complaint likewise reasserted the counts pertaining to Mr Wiseman however those claims are not relevant to this appeal See supra note 1

2

entities (7) failed to adhere to legal formalities necessary to maintain limited liability

company status (8) diverted the companyrsquos assets to their own benefit and use (9) failed to

maintain records of the companyrsquos corporate and business activities (10) failed to insure the

company and left it grossly undercapitalized for the reasonable risks of owning and operating

a bar and (11) operated the company as a mere alter ego of themselves Based upon these

allegations Mr Kubican asserted that the circuit court was entitled to disregard the corporate

fiction and hold Paugh and Mangum personally liable for the debts of The Tavern

Defendant The Tavern filed a response to Mr Kubicanrsquos motion to amend the

complaint resisting the same and arguing that the sole purpose for adding Paugh and

Mangum as defendants was to pierce the veil of their West Virginia limited liability company

(hereinafter ldquoLLCrdquo) which according to The Tavern is prohibited by West Virginia law

Relying on W Va Code sect 31B-3-303 (1996) (Repl Vol 2006)4 The Tavern argued that

members of an LLC are not personally liable for any debt obligation or liability of the

company solely by reason of being or acting as a member or manager The Tavern pointed

out that Count 6 of the amended complaint titled ldquoVeil Piercingrdquo was the only count

purporting to assert a claim against Paugh and Mangum Thus no allegations of wrongdoing

on the part of Paugh and Mangum have been asserted by Mr Kubican Rather according to

4The full text of W Va Code sect 31B-3-303 (1996) (Repl Vol 2009) which is titled ldquoLiability of members and managersrdquo is quoted in the discussion section of this opinion See Section III infra

3

The Tavern the claims are based solely on Paughrsquos and Mangumrsquos status as members andor

managers of the LLC Thus The Tavern argued the circuit court should refuse the motion

to amend the complaint

Mr Kubican filed a reply to The Tavernrsquos response to his motion to amend his

complaint In his reply Mr Kubican challenged the defendantrsquos interpretation of cases it

cited in support of its argument that members of an LLC may not be held liable for any debt

obligation or liability of the company According to Mr Kubican none of the cases cited by

The Tavern stood for the proposition asserted by the defendant In addition Mr Kubican

noted that on November 1 2011 the West Virginia Secretary of State issued a ldquoCertificate

of Administrative Dissolutionrdquo certifying that The Tavern had failed to file its annual report

andor pay the annual report fee as required by West Virginia law Finally Mr Kubican filed

a supplemental reply in support of his motion to amend his complaint wherein he presented

the circuit court with copies of The Tavernrsquos banking records Mr Kubican argued that the

banking records established that The Tavern was a sham company insofar as the records

demonstrated that throughout The Tavernrsquos existence company funds were being used to

purchase personal items including chiropractic services and to pay for numerous purchases

at various restaurants Mr Kubican further asserted that although Bubbarsquos Bar amp Grill was

purportedly closed in June 2011 and The Tavern has also ceased to exist use of The

Tavernrsquos credit card and bank account have not stopped Mr Kubican stated that subpoenaed

4

bank records showed the accounts were still in use in February 2012 the most recent records

he could obtain by subpoena5 According to Mr Kubican those records indicated that in

February 2012 more than 115 transactions were made using the company checking account

at locations such as grocery stores convenience stores restaurants medical providers hair

stylists and amusement parks Mr Kubican asserted that the records also reflect a trip to

Myrtle Beach South Carolina

Instead of ruling on Mr Kubicanrsquos motion to amend his complaint the circuit

court determined that it had been presented with an issue of first impression and therefore

certified the following question to this Court by order entered April 12 2012

Does West Virginiarsquos version of the Uniform Limited Liability Company Act codified at W Va Code sect 31B[-1-101] et seq afford complete protection to members of a limited liability company against a plaintiff seeking to pierce the corporate veil

The circuit court answered this question in the affirmative based upon its conclusion that

such an answer was in accord with the plain language of W Va Code sect 31B-3-3036

5Mr Kubicanrsquos supplemental reply appears to have been filed on March 20 2012

6For the full text of W Va Code sect 31B-3-303 see the discussion section of this opinion See infra Section III

5

II

STANDARD OF REVIEW

We exercise de novo review of the instant certified question ldquoThe appellate

standard of review of questions of law answered and certified by a circuit court is de novordquo

Syl pt 1 Gallapoo v Wal-Mart Stores Inc 197 W Va 172 475 SE2d 172 (1996)

Furthermore to the extent that reaching an answer to the question herein certified requires

us to interpret a statutory provision our review is likewise de novo ldquoWhere the issue on an

appeal from the circuit court is clearly a question of law or involving an interpretation of a

statute we apply a de novo standard of reviewrdquo Syl pt 1 Chrystal RM v Charlie AL

194 W Va 138 459 SE2d 415 (1995)rdquo Accordingly we proceed with our plenary

analysis

III

DISCUSSION

Mr Kubican argues that this Court should answer the certified question in the

negative and conclude that West Virginiarsquos Uniform Limited Liability Company Act does

not afford complete protection to members of an LLC against a plaintiff seeking to pierce the

corporate veil Mr Kubican explains that West Virginia adopted its version of the act from

the 1996 Uniform Limited Liability Company Act (hereinafter ldquoULLCArdquo) drafted by the

6

National Conference of Commissioners on Uniform State Laws7 According to Mr Kubican

numerous other jurisdictions that also have adopted the ULLCA have addressed the question

of whether the Act precludes veil piercing Mr Kubican submits that ldquonot a single court has

concluded that the act prohibitsrdquo veil piercing Finally Mr Kubican opines that adopting a

rule that the LLC business form affords complete protection to LLC members would render

West Virginia a safe haven for corporate irresponsibility and fraud

The Tavern8 argues that W Va Code sect 31B-3-303 expressly provides that

members or managers of West Virginia LLCs are not personally responsible for any liability

7Mr Kubican submits that W Va Code sect 31B-3-303 which pertains to liability of members and managers of limited liability companies is identical to the corresponding section of the 1996 Uniform Limited Liability Company Act sect 303 and nearly identical to the corresponding section of the Revised Uniform Limited Liability Company Act adopted in 2006 (hereinafter ldquo2006 RULLCArdquo) which is sect 304

For a full copy of the 1996 ULLCA see httpwwwuniformlawsorgshareddocslimited20liability20companyullca96pdf (last visited October 24 2013)

8The Tavern first responds that the circuit court correctly refused to allow the amendment of the complaint as the claims in the amendment against the members of The Tavern would not have permitted the presentation of the merits of the action

It should be noted that this case is before this Court on a certified question and not an appeal from a ruling of the circuit court denying a motion to amend the complaint Thus this argument asserted by The Tavern is not relevant to the issue before the Court Furthermore it does not appear that the circuit court has ruled on the motion to amend the complaint Presumptively such a ruling would be made only after the herein certified question has been answered by this Court Otherwise this Courtrsquos endeavor to answer the certified question would be an act of futility

7

of the company Therefore The Tavern contends a plain reading of the statute supports the

position that piercing the veil of an LLC is not allowed

In the LLC context the purpose of piercing the corporate veil would be to hold

members andor managers of the LLC personally liable for the wrongful actions of the

business9 Cf 18 CJS Corporations sect14 at 319 (2007) (ldquolsquoPiercing the corporate veilrsquo is

the judicial act of imposing personal liability on otherwise immune corporate officers

directors and shareholders for the corporationrsquos wrongful actsrdquo (footnote omitted)) Thus

we first must determine whether West Virginia law allows an LLC member or manager to

be held liable in this manner

We begin our analysis with an examination of W Va Code sect 31B-3-303 the

provision of the West Virginia Uniform Limited Liability Act that addresses the liability of

LLC members and managers In doing so we recognize that ldquo[t]he primary object in

construing a statute is to ascertain and give effect to the intent of the Legislaturerdquo Syl pt

9This type of liability is distinguishable from holding an LLC member or manager personally liable based upon his or her own tortious actions See 51 Am Jur 2d Limited Liability Companies sect 16 at 848 (2011) (ldquoWhereas managers of limited liability companies may not be held liable for the wrongful conduct of the companies merely because of their manager status they may nonetheless be held accountable for their personal participation in tortious or criminal conduct even when performing their duties as managerrdquo (footnote omitted))

8

1 Smith v State Workmenrsquos Comp Commrsquor 159 W Va 108 219 SE2d 361 (1975) The

initial step in ascertaining the intent of the Legislature is to consider the language of the

statute at issue ldquoWhen a statute is clear and unambiguous and the legislative intent is plain

the statute should not be interpreted by the courts and in such case it is the duty of the courts

not to construe but to apply the statuterdquo Syl pt 5 State v General Daniel Morgan Post No

548 Veterans of Foreign Wars 144 W Va 137 107 SE2d 353 (1959) Nevertheless ldquo[a]

statute that is ambiguous must be construed before it can be appliedrdquo Syl pt 1 Farley v

Buckalew 186 W Va 693 414 SE2d 454 (1992) In other words ldquolsquo[a] statute is open to

construction only where the language used requires interpretation because of ambiguity

which renders it susceptible of two or more constructions or of such doubtful or obscure

meaning that reasonable minds might be uncertain or disagree as to its meaningrsquordquo Mace v

Mylan Pharms Inc 227 W Va 666 673 714 SE2d 223 230 (2011) (quoting Hereford

v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))

With the foregoing canons in mind we turn now to the particular language of

W Va Code sect 31B-3-303 which states in part

(a) Except as otherwise provided in subsection (c) of this section the debts obligations and liabilities of a limited liability company whether arising in contract tort or otherwise are solely the debts obligations and liabilities of the company A member or manager is not personally liable for a debt obligation or liability of the company solely by reason of being or acting as a member or manager

9

(c) All or specified members of a limited liability company are liable in their capacity as members for all or specified debts obligations or liabilities of the company if

(1) A provision to that effect is contained in the articles of organization and

(2) A member so liable has consented in writing to the adoption of the provision or to be bound by the provision

W Va Code sect 31B-3-303 The language of this provision is unambiguous insofar as it

declares that with the exception noted in subsection (c) ldquo[a] member or manager is not

personally liable for a debt obligation or liability of the company solely by reason of being

or acting as a member or managerrdquo The key language relevant to the issue presented in the

instant action which is italicized in the foregoing quote proscribes liability ldquosolely by reason

of being or acting as a member or managerrdquo10 By proscribing liability on the sole basis of

being a member or manager of an LLC the Legislature implicitly has left intact the prospect

10To be clear liability based solely on being or acting as a member or manager of an LLC is subject to the exception set out in subsection (c) of W Va Code sect 31B-3-303 Pursuant to that exception a manager or member of an LLC is personally liable ldquosolely by reason of being or acting as a member or managerrdquo when



W Va Code sect 31B-3-303 (emphasis added)

10

of an LLC member or manager being liable on grounds that are not based solely on a

personrsquos status as a member or manager of an LLC Our reasoning is supported by the

maxim expressio unius est exclusio alterius ldquoIn the interpretation of statutory provisions the

familiar maxim expressio unius est exclusio alterius the express mention of one thing

implies the exclusion of another appliesrdquo Syl pt 3 Manchin v Dunfee 174 W Va 532

327 SE2d 710 (1984) See also State ex rel Riffle v Ranson 195 W Va 121 128 464

SE2d 763 770 (1995) (ldquoExpressio unius est exclusio alterius (express mention of one thing

implies exclusion of all others) is a well-accepted canon of statutory constructionrdquo (citations

omitted)) Furthermore this conclusion is in accord with the manner in which other courts

have interpreted similar statutes See Bowen v 707 On Main No CV020282643S 2004 WL

424501 at 3 (Conn Super Ct Feb 24 2004) (ldquoThe principle of piercing the corporate

veil also is applicable to limited liability companies and their members General Statutes

sect 34-133rdquo (quotations and citations omitted))11 Kaycee Land amp Livestock v Flahive 46

11Similar to the West Virginia statute Connecticutrsquos limited liability statute states

ldquo(a) Except as provided in subsection (b) of this section a person who is a member or manager of a limited liability company is not liable solely by reason of being a member or manager under a judgment decree or order of a court or in any other manner for a debt obligation or liability of the limited liability company whether arising in contract tort or otherwise or for the acts or omissions of any other member manager agent or employee of the limited liability companyrdquo

Bowen v 707 On Main No CV020282643S 2004 WL 424501 at 2 n4 (Conn Super Ct (continued)

11

P3d 323 325-26 (Wyo 2002) (ldquo[W]e are asked to broadly pronounce that there are no

circumstances under which this court will look through a failed attempt to create a separate

LLC entity and prevent injustice We simply cannot reach that conclusion and believe it is

improvident for this court to prohibit this remedy [of piercing the veil] from applying to any

unforeseen circumstance that may exist in the futurerdquo)12 See also Filo Am Inc v Olhoss

Trading Co LLC 321 F Supp 2d 1266 1269 (MD Ala 2004) (observing that

ldquocommentators who have discussed the issue as a nationwide matter have concluded that the

lsquoveil-piercingrsquo doctrine applies to LLCs Further the courts in other States that have

considered whether the lsquoveil-piercingrsquo doctrine applies to LLCs have concluded that it doesrdquo

and collecting authorities) Accordingly we hold that W Va Code sect 31B-3-303 permits the

11(continued) Feb 24 2004) (quoting Connecticut General Statutes sect 34-133(a))

12The relevant Wyoming statute provides that

ldquoNeither the members of a limited liability company nor the managers of a limited liability company managed by a manager or managers are liable under a judgment decree or order of a court or in any other manner for a debt obligation or liability of the limited liability companyrdquo

Kaycee Land amp Livestock v Flahive 46 P3d 323 326 (Wyo 2002) (quoting Wyo Stat Ann sect 17ndash15ndash113 (LexisNexis 2001)) In support of finding the foregoing language allowed for piercing the veil of an LLC the Kaycee court expressed its agreement that ldquolsquo[i]t is difficult to read statutory sect 17ndash15ndash113 as intended to preclude courts from deciding to disregard the veil of an improperly used LLCrsquordquo Kaycee 46 P3d at 326 (quoting Harvey Gelb Liabilities of Members and Managers of Wyoming Limited Liability Companies 31 Land amp Water L Rev 133 at 142 (1996)) In 2010 Wyoming repealed this statute and adopted the 2006 RULLA The current Wyoming statute addressing the liability of LLC members and managers is Wyo Stat Ann sect 17-29-304

12

equitable remedy of piercing the veil to be asserted against a West Virginia Limited Liability

Company

Although the language employed by the Legislature has preserved the ability

to pierce the veil of an LLC to hold a member or manager liable the Legislature has failed

to identify the circumstances under which the imposition of such liability is proper Thus

in this regard W Va Code sect 31B-3-303 is ambiguous and must be interpreted Subsection

(b) of W Va Code sect 31B-3-303 does provide a starting point for our analysis by specifying

that ldquo[t]he failure of a limited liability company to observe the usual company formalities or

requirements relating to the exercise of its company powers or management of its business

is not a ground for imposing personal liability on the members or managers for liabilities of

the companyrdquo (Emphasis added) Thus while is it clear that the failure of a limited liability

company to observe ldquousual company formalitiesrdquo is not sufficient grounds upon which to

pierce the LLC veil and hold its members personally liable we must nevertheless endeavor

to identify those grounds upon which the veil of an LLC may be pierced in order to fully

answer the certified question presented in this action Because this is a novel question in

West Virginia we find it helpful to consider the criteria used by other courts to determine

when it is appropriate to pierce the veil of an LLC

13

The State of Illinois has enacted statutory provisions identical to those

contained in W Va Code sect 31B-3-303 See 805 ILCS 18010ndash10 (a) (c) amp (d) (West

2008) In Seater Construction Company Inc v Deka Investments LLC No 2ndash12ndash1140

2013 WL 3272487 at 8 (Ill Ct App June 24 2013) the Appellate Court of Illinois

acknowledged that ldquono Illinois case has held that the doctrine of piercing the corporate veil

applies to an Illinois limited liability company (LLC)rdquo Nevertheless the court observed that

ldquolsquowhile the [Illinois Limited Liability Company] Act provides specifically that the failure to

observe the corporate formalities is not a ground for imposing personal liability on the

members of an LLC it does not bar the other bases for corporate veil piercing such as alter

ego fraud or undercapitalizationrsquordquo Seater 2013 WL 3272487 at 8 (quoting Westmeyer

v Flynn 382 Ill App 3d 952 960 (2008))

In determining whether to pierce the veil of an LLC the Seater court applied

the existing Illinois two-prong analysis for piercing the veil of a corporation The two-part

test considered (1) unity of interest and ownership and (2) fraud injustice or inequitable

consequences Observing that numerous factors are applicable to an analysis pertaining to

the unity of interest and ownership prong of the test but also noting that several of the factors

are inapplicable to piercing the veil of an LLC the Seater court commented

Ordinarily in determining whether the ldquounity of interest and ownershiprdquo prong of the piercing-the-corporate-veil test is met a court considers many factors including (1) inadequate capitalization (2) failure to issue stock (3) failure to observe

14

corporate formalities (4) nonpayment of dividends (5) insolvency of the debtor corporation (6) nonfunctioning of the other officers or directors (7) absence of corporate records (8) commingling of funds (9) diversion of assets from the corporation by or to a stockholder or other person or entity to the detriment of creditors (10) failure to maintain armrsquos-length relationships among related entities and (11) whether in fact the corporation is a mere facade for the operation of the dominant stockholders Fontana[ v TLD Builders Inc] 362 Ill App 3d [491] 503 [(2005)] Several of the factors are inapplicable to piercing the veil of an LLC because they deal with adherence to corporate formalities 805 ILCS 18010ndash10(c) (West 2008)

Seater 2013 WL 3272487 at 8 Based upon the arguments presented to the Seater court

by the appellant the court addressed factors (1) (8) (9) and (10) to ultimately conclude that

grounds did not exist to warrant piercing the veil of the LLC at issue under the facts

presented in that case

Other courts similarly have applied the same basic analysis to piercing the veil

of an LLC that would be applied in the context of piercing the corporate veil but with the

acknowledgment that some factors may not apply In Filo America Inc v Olhoss Trading

Co LLC 321 F Supp 2d 1266 the United States District Court concluded that

under Alabama law it is possible to ldquopierce the veilrdquo of an LLC in some situations The factors that Alabama courts consider in deciding whether it is appropriate to ldquopierce the veilrdquo of a corporation are (1) inadequacy of capital (2) fraudulent purpose in conception or operation of the business (3) operation of the corporation as an instrumentality or alter ego Culp v Economy Mobile Homes Inc 895 So 2d 857 [859-60] 2004 WL 541818 (Ala) (internal citations omitted) While some of

15

these factors may not apply to LLCs in the same way they apply to corporations see [Bradley J Sklar and W Todd Carlisle The Alabama Limited Liability Company Act 45 Ala L Rev 145 202 (1993)] (ldquoInadequacy of capital should provide less of a basis for piercing the LLC veil than the corporate veilrdquo) a fraudulent purpose in the conception or operation of an LLC should certainly be a valid reason for ldquopiercingrdquo the LLCrsquos ldquoveilrdquo Eric Fox Note Piercing the Veil of Limited Liability Companies 62 Geo Wash L Rev 1143 (1994) (ldquoIf it is in the public interest to disregard the legal fiction when those benefitting from that fiction commit fraudulent conduct it should not matter to the court whether the legal fiction is used by corporate shareholders or LLC membersrdquo)

Filo Am Inc 321 F Supp 2d at 1269-7013

13In reaching this conclusion the district court reasoned that

[b]ecause the LLC borrows its limited liability characteristics from the law applicable to corporations the ldquoveil-piercingrdquo exception applicable to corporations should also apply to LLCs In other words since a stockholder or owner of a corporation can be held liable for the debts and obligations of the corporation in the rare case in which ldquopiercing the corporate veilrdquo is appropriate a member of an LLC should be similarly liable when it is appropriate for the ldquoveilrdquo of the LLC to be ldquopiercedrdquo See [Bradley J Sklar and W Todd Carlisle The Alabama Limited Liability Company Act 45 Ala L Rev 145 200 (1993)] (stating that corporate precedents on veil piercing will probably apply to LLCs in Alabama)

Filo Am Inc v Olhoss Trading Co LLC 321 F Supp 2d 1266 1269 (MD Ala 2004)

16

The Court of Appeals of Utah also applied a corporate veil piercing analysis

to an LLC in drsquoElia v Rice Development Inc 147 P3d 515 (Utah Ct App 2006) The

drsquoElia court observed that

[i]n Ditty v CheckRite Ltd 973 F Supp 1320 (D Utah 1997) a federal district court determined that under Utah law the corporate veil piercing doctrine equally applies to Utah liability companies See id at 1335 (noting that although ldquothere is little case law discussing veil piercing theories outside the corporate context most commentators assume that the doctrine applies to limited liability companiesrdquo and citing a number of commentators)

drsquoElia 147 P3d at 521 n5 Accordingly the drsquoElia court applied the same analysis it would

have used to determine whether a non-LLC corporate entityrsquos veil should be pierced and

ultimately concluded that ldquo[t]he record reveals that substantial evidence exists to support the

trial courtrsquos decision not to pierce the corporate veilrdquo 147 P3d at 523 (emphasis added)

Thus it appears that most courts addressing the question of whether to pierce

the veil of an LLC apply the same test used to analyze piercing the corporate veil See eg

Thomas v Bridges 120 So 3d 338 342 (La Ct App 2013) (applying ldquofive-factor test [for

piercing corporate veil] supplied by the Louisiana Supreme Court in Riggins v Dixie Shoring

Co Inc 590 So 2d 1164 1168 amp n5 (La 1991)rdquo to an LLC elements of five factor test

ldquoinclude but are not limited to 1) commingling of corporate and shareholder funds 2)

failure to follow statutory formalities for incorporating and transacting corporate affairs 3)

undercapitalization 4) failure to provide separate bank accounts and bookkeeping records

17

and 5) failure to hold regular shareholder and director meetings Riggins 590 So 2d at

1168rdquo)14 These courts however often recognize that certain elements of the test may not

apply at all while other elements may apply to an LLC in a different manner than they would

apply to a corporation

Some courts additionally have cautioned that a veil piercing analysis is a fact

driven analysis that must be engaged on a case-by-case basis For example in Kaycee Land

14For examples of other tests applied by courts deciding whether to pierce the veil of an LLC see Restaurant of Hattiesburg LLC v Hotel amp Rest Supply Inc 84 So 3d 32 39 (Miss Ct App 2012) (holding that ldquoto pierce the veil of an LLC the complaining party must prove LLC membership as well as (a) some frustration of contractual expectations (b) flagrant disregard of LLC formalities by the LLC members and (c) fraud or misfeasance by the LLC memberrdquo) Thomas ampThomas Court Reporters LLC v Switzer 283 Neb 19 27-28 810 NW2d 677 685 (2012) (ldquo[T]he individual members and managers of a limited liability company are generally not liable for a debt obligation or liability of the company And a court will disregard such a companyrsquos identity only where the company has been used to commit fraud violate a legal duty or perpetrate a dishonest or unjust act in contravention of the rights of another The companyrsquos identity as a separate legal entity will be preserved as a general rule until sufficient reason to the contrary appears And a plaintiff seeking to impose liability on an individual member or manager has the burden of proving that the companyrsquos identity should be disregarded to prevent fraud or injustice to the plaintiffrdquo (footnotes omitted)) But see White v Longley 358 Mont 268 280 n2 244 P3d 753 761 n2 (2010) (ldquoSome commentators and courts have advocated application to LLCs of the rules regulating piercing the corporate veil to impose individual liability See[] eg[] [Steven C Bahls Application of Corporate Common Law Doctrines to Limited Liability Companies 55 Mont L Rev 44 59ndash66 (1994)] Because sect 35ndash8ndash304 MCA clearly does not establish blanket liability protection for members of LLCs and because the intent of that section is to allow liability in a situation in which the member acting individually would be liable it is not necessary to engraft the veil piercing law from the corporate arena to resolve this issuerdquo)

18

amp Livestock v Flahive 46 P3d 323 the Supreme Court of Wyoming addressed a certified

question asking

In the absence of fraud is a claim to pierce the Limited Liability entity veil or disregard the Limited Liability Company entity in the same manner as a court would pierce a corporate veil or disregard a corporate shield an available remedy against a Wyoming Limited Liability Company under Wyomingrsquos Limited Liability Company Act Wyo Stat sectsect 17ndash15ndash101 through 17ndash15ndash144 (2000)

Id at 32415 The Kaycee court observed that ldquoWyoming courts as well as courts across the

country have typically utilized a fact driven inquiry to determine whether circumstances

justify a decision to pierce a corporate veilrdquo Id at 325 (citation omitted) Because the case

had come ldquoas a certified question in the abstract with little factual contextrdquo the court opined

that ldquo[i]t would be inadvisable in this case which lacks a complete factual context to attempt

to articulate all the possible factors to be applied to LLCs in Wyoming in the futurerdquo Id at

325 amp 32816

15ldquoWyoming was the first state to enact LLC statutesrdquo Kaycee Land amp Livestock v Flahive 46 P3d 323 326 The language of the particular statute at issue in Kaycee is quoted supra at note 12

16Nevertheless as with the other cases cited earlier in this opinion the Kaycee court indicated that most courts have in general applied to LLCs the existing common law factors for piercing the veil in the corporate context The court in Kaycee also recognized that ldquo[c]ertainly the various factors which would justify piercing an LLC veil would not be identical to the corporate situation for the obvious reason that many of the organizational formalities applicable to corporations do not apply to LLCsrdquo Kaycee Land amp Livestock v Flahive 46 P3d 323 328 Nevertheless a subsequent Wyoming case provided some guidance as to the general factors that would be relevant to an LLC veil piercing analysis by observing that

(continued)

19

New Jersey has agreed with the analysis utilized by the Wyoming court in

Kaycee Land amp Livestock After favorably discussing the Kaycee opinion the Superior

Court of New Jersey commented that

the particular standard [for piercing the veil of an LLC] should be developed over time as courts address concrete cases It is not for this court solely on the facts presented to it in this case to formulate a generally-applicable standard It is sufficient for this court to conclude that in this case Bornersquos failure to scrupulously identify the entity through which he was acting his dominion and control of Esplanade LLC and the entityrsquos undercapitalization should not loom as large as it might were the entity a corporation

DR Horton Inc-New Jersey v Dynastar Dev LLC No MER-L-1808-00 2005 WL

1939778 at 36 (NJ Super Ct Law Div Aug 10 2005)17 The New Jersey court

16(continued) ldquo[t]he LLC veil piercing factors used from the corporate arena can be reduced to four categories

1 Fraud

2 Inadequate capitalization

3 Failure to observe company formalities and

4 Intermingling the business and finances of the company and the member to such an extent that there is no distinction between them[]rdquo

Gasstop Two LLC v Seatwo LLC 225 P3d 1072 1077 (Wyo 2010) (quoting Phillip L Jelsma and Pamela Everett Nollkamper (Phillip P Whynott) The Limited Liability Company sect 11-130 (2009))

17The New Jersey LLC statute provides in relevant part (continued)

20

ultimately applied the common law test for piercing the veil of a corporation tempered by

the fact that the business at issue was an LLC and concluded that the circumstances

presented did not warrant piercing the LLC veil

under the two-part test Horton NJ must prove that (1) Esplanade LLC was a mere instrumentality or alter ego of Borne and (2) Borne abused the business form to perpetrate a fraud injustice or otherwise circumvent the law Particularly given the lesser weight assigned to the formalities and dominion-and-control factors Horton NJ has failed to prove the first prong Moreover the court finds no injustice or circumvention of law notwithstanding that Esplanade LLC ultimately lacked sufficient capital to fulfill its obligations

DR Horton Inc 2005 WL 1939778 at 36 Notably however the New Jersey court

cautioned that

persuasive authorities indicate that corporate veil-piercing doctrine should not be mechanically applied to cases involving limited liability companies In particular a court should view in

17(continued) ldquoExcept as otherwise provided by this act the debts

obligations and liabilities of a limited liabilitycompany whether arising in contract tort or otherwise shall be solely the debts obligations and liabilities of the limited liability company and no member manager employer or agent of a limited liability company shall be obligated personally for any such debt obligation or liability of the limited liability company or for any debt obligation or liability of any other member manager employee or agent of the limited liability company by reason of being a member or acting as a manager employee or agent of the limited liability companyrdquo

DR Horton Inc-New Jersey v Dynastar Dev LLC No MER-L-1808-00 2005 WL 1939778 at 31-32 (NJ Super Ct Law Div Aug 10 2005) (quoting NJSA sect 422B-23)

21

a different light the factors of adherence to corporate formalities and scrutiny of ownersrsquo dominion and control

[C]ourts that have expressly considered the differences between the two business forms have concluded that veil-piercing doctrine should be molded to accommodate the differences

As noted by the Wyoming Supreme Court adherence to formalities is one factor that should weigh differently in the case of a limited liability company Kaycee Land and Livestock v Flahive supra 46 P3d at 328 Vandervoort concurs for two reasons [J Vandervoot Piercing the Veil of Limited Liability Companies The Need For A Better Standard 3 DePaul Bus amp Com LJ 51 68-70 (2004)] First a small-business ownerrsquos failure to adhere to formalities may simply reflect disregard of formalities ldquoirrelevant to their actual operationrdquo and lack of funds to hire lawyers and others to keep track of statutory obligations None of that may evidence misuse of the statute Ibid Second ldquoLLCrsquos [sic] have relatively few statutorily mandated formalities and have a considerable amount of freedom and flexibility as to the management structure of the entityrdquo This informality encouraged by statute should not then be a basis to avoid statutory limited liability Ibid See [David L Cohen Theories of the Corporation and the Limited Liability Company How Should Courts and Legislatures Articulate Rules for Piercing the Veil Fiduciary Responsibility and Securities Regulation for the Limited Liability Company 51 Okla L Rev 427 457 (2004)] (ldquo[T]o allow piercing for disregarding LLC formalities will make the promise of limited liability for LLCs empty by definitionrdquo)

DR Horton Inc 2005 WL 1939778 at 33-35

22

Similarly in Bowen v 707 On Main 2004 WL 424501 the Superior Court of

Connecticut explained that

ldquo[T]he determination of whether to pierce the corporate veil to disregard the protections afforded a limited liability company requires the same analysis [as that of a corporate entity]rdquo KLM Industries Inc v Tylutki 75 Conn App 27 28 n2 815 A2d 688 cert denied 263 Conn 916 821 A2d 770 (2003)

ldquoThe concept of piercing the corporate veil is equitable in nature and courts should pierce [it] only under exceptional circumstancesrdquo (Internal quotation marks omitted) Hershey v Lonrho 73 Conn App 78 87 807 A2d 1009 (2002) Such exceptional circumstances would include instances ldquowhere the corporation is a mere shell serving no legitimate purpose and used primarily as an intermediary to perpetuate fraud or promote injusticerdquo (Internal quotation marks omitted) SFA Folio Collections Inc v Bannon 217 Conn 220 230 585 A2d 666 cert denied 501 US 1223 111 S Ct 2839 115 L Ed 2d 1008 (1991)

Bowen 2004 WL 424501 at 218 Finally the court noted that

18The Bowen court described the test for piercing the corporate veil as follows

ldquoWhen determining whether piercing the corporate veil is proper our [courts have] endorsed two tests the instrumentality test and the identity test The instrumentality rule requires proof of three elements (1) Control not merely majority or complete stock control but complete domination not only of finances but of policy and business in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind will or existence of its own (2) that such control must have been used

(continued)

23

ldquoOne of the principal reasons to use an LLC is that the owners and managers if the owners so elect have limited liability from contract and tort claims of third parties M Pruner A Guide to Connecticut Liability Companies sect 311 p 9 (1995)rdquo Stone v Frederick Hobby Assoc II Superior Court judicial district of StamfordNorwalk at Stamford Docket No CV 00 0181620 (July 10 2001 Mintz J)

ldquoNo hard and fast rule however as to the conditions under which the entity may be disregarded can be stated as they vary according to the circumstances of each caserdquo (Internal quotation marks omitted) Angelos Tomasso v Armor Construction amp Paving Inc 187 Conn 544 555-56 447 A2d 406 (1982)

18(continued) by the defendant to commit fraud or wrong to perpetuate the violation of a statutory or other positive legal duty or a dishonest or unjust act in contravention of the plaintiffrsquos legal rights and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained ofrdquo (Internal quotation marks omitted) [Mountview] Plaza Inc v World Wide Pet Supply Inc [76 Conn App 627] 633-34[ 820 A2d 1105 1110 (2003)] ldquoThe identity rule has been stated as follows If a plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterpriserdquo (Internal quotation marks omitted) Litchfield Asset Management Corp v Howell [70 Conn App 133] 156[ 799 A2d 298 315 cert denied 261 Conn 911 806 A2d 49 (2002)]

Bowen 2004 WL 424501 at 2

24

Bowen 2004 WL 424501 at 4 See also Martin v Freeman 272 P3d 1182 1184

(Colo App 2012) (ldquoTo pierce the LLC veil the court must conclude (1) the corporate entity

is an alter ego or mere instrumentality (2) the corporate form was used to perpetrate a fraud

or defeat a rightful claim and (3) an equitable result would be achieved by disregarding the

corporate form The third prong in particular recognizes that veil piercing is a

lsquofact-specificrsquo inquiryrdquo (internal citation omitted))

Based upon the foregoing authority this Court will consider West Virginia

common law standards for piercing the corporate veil in order to establish guidance for lower

courts deciding whether to pierce the veil of an LLC In doing so we are mindful that the

analysis necessarily is fact based and must be applied to LLCs on a case-by-case basis See

Southern Elec Supply Co v Raleigh Cnty Natrsquol Bank 173 W Va 780 787 320 SE2d

515 523 (1984) (ldquo[D]ecisions to look beyond inside and through corporate facades must be

made case-by-case with particular attention to factual detailsrdquo (footnote omitted))

With regard to corporate veil piercing in general this Court has held that ldquo[t]he

law presumes that corporations are separate from their shareholdersrdquo Syl pt 3 in part

Southern Elec Supply Co 173 W Va 780 320 SE2d 515 Nevertheless

ldquo[w]hile legally speaking a corporation constitutes an entity separate and apart from the persons who own it such is a fiction of the law introduced for purpose of convenience and to subserve the ends of justice and it is now well settled as a

25

general principle that the fiction should be disregarded when it is urged with an intent not within its reason and purpose and in such a way that its retention would produce injustices or inequitable consequencesrdquo Syl pt 10 Sanders v Roselawn Memrsquol Gardens Inc 152 W Va 91 159 SE2d 784 (1968)

Syl pt 2 Laya v Erin Homes Inc 177 W Va 343 352 SE2d 93 (1986) More

specifically we held in Laya that

to ldquopierce the corporate veilrdquo in order to hold the shareholder(s) actively participating in the operation of the business personally liable there is normally a two-prong test (1) there must be such unity of interest and ownership that the separate personalities of the corporation and of the individual shareholder(s) no longer exist (a disregard of formalities requirement) and (2) an inequitable result would occur if the acts are treated as those of the corporation alone (a fairness requirement)

Syl pt 3 in part id19 Although the Laya test was applied in the context of a breach of

contract a subsequent case has made clear that the test applies in other contexts as well See

St Peter v Ampak-Div of Gatewood Prod Inc 199 W Va 365 484 SE2d 481 (1997)

(addressing veil piercing analysis in connection with retaliatorydischarge and discrimination

claims)

19We do not perceive the characterization of the first element of the Laya test as a ldquodisregard of formalities requirementrdquo to be identical to the ldquousual company formalities or requirementsrdquo that are prohibited as a grounds for personal liability of an LLC member under W Va Code sect 31B-3-303 While some considerations of these two types of formalities may be the same or similar we find the Laya test to be more broad The broader application of the Laya test is demonstrated by the non-exclusive list of factors that may be considered in conducting a veil piercing analysis under Laya Those factors are quoted infra in this opinion

26

In reaching the foregoing holding in Laya we set out a non-exhaustive list of

factors that might be relevant in determining whether to pierce a corporate veil Those

factors included

(1) commingling of funds and other assets of the corporation with those of the individual shareholders

(2) diversion of the corporationrsquos funds or assets to noncorporate uses (to the personal uses of the corporationrsquos shareholders)

(3) failure to maintain the corporate formalities necessary for the issuance of or subscription to the corporationrsquos stock such as formal approval of the stock issue by the board of directors

(4) an individual shareholder representing to persons outside the corporation that he or she is personally liable for the debts or other obligations of the corporation

(5) failure to maintain corporate minutes or adequate corporate records

(6) identical equitable ownership in two entities

(7) identity of the directors and officers of two entities who are responsible for supervision and management (a partnership or sole proprietorship and a corporation owned and managed by the same parties)

(8) failure to adequately capitalize a corporation for the reasonable risks of the corporate undertaking

(9) absence of separately held corporate assets

(10) use of a corporation as a mere shell or conduit to operate a single venture or some particular aspect of the business of an individual or another corporation

27

(11) sole ownership of all the stock by one individual or members of a single family

(12) use of the same office or business location by the corporation and its individual shareholder(s)

(13) employment of the same employees or attorney by the corporation and its shareholder(s)

(14) concealment or misrepresentation of the identity of the ownership management or financial interests in the corporation and concealment of personal business activities of the shareholders (sole shareholders do not reveal the association with a corporation which makes loans to them without adequate security)

(15) disregard of legal formalities and failure to maintain proper armrsquos length relationships among related entities

(16) use of a corporate entity as a conduit to procure labor services or merchandise for another person or entity

(17) diversion of corporate assets from the corporation by or to a stockholder or other person or entity to the detriment of creditors or the manipulation of assets and liabilities between entities to concentrate the assets in one and the liabilities in another

(18) contracting by the corporation with another person with the intent to avoid the risk of nonperformance by use of the corporate entity or the use of a corporation as a subterfuge for illegal transactions

(19) the formation and use of the corporation to assume the existing liabilities of another person or entity

Laya 177 W Va at 347-48 352 SE2d at 98-99 See also St Peter 199 W Va at 372-73

484 SE2d at 488-89 (ldquolsquoDecisions to ldquopiercerdquo involve multifarious considerations including

28

inadequacy of capital structures whether personal and corporate funds have been

commingled without regard to corporate form by a sole shareholder whether two

corporations have commingled their funds so that their accounts are interchangeable whether

they have failed to follow corporate formalities siphoning funds from one corporation to

another without regard to harm caused either entity or failed to keep separate records Other

reasons to disregard the structure are total control and dominance of one corporation by

another or a shareholder existence of a dummy corporation with no business activity or

purpose violation of law or public policy a unity of interest and ownership that causes one

party or entity to be indistinguishable from another common shareholders common officers

and employees and common facilitiesrsquordquo (quoting Southern Elec Supply Co 173 W Va at

788 320 SE2d at 523))

While many of the foregoing factors among others may be relevant to a court

deciding whether to pierce the veil of an LLC we hesitate to adopt a test that sets out specific

factors insofar as this Court and others have cautioned that such an analysis must be applied

on a case-by-case basis considering the particular facts presented therein Consequently we

establish a more general test following the lead of the Court in Laya and hold that to pierce

the veil of a limited liability company in order to impose personal liability on its member(s)

or manager(s) it must be established that (1) there exists such unity of interest and ownership

that the separate personalities of the business and of the individual member(s) or managers(s)

29

no longer exist and (2) fraud injustice or an inequitable result would occur if the veil is not

pierced This is a fact driven analysis that must be applied on a case-by-case basis and

pursuant to W Va Code sect 31B-3-303(b) the failure of a limited liability company to observe

the usual company formalities or requirements relating to the exercise of its company powers

or management of its business may not be a ground for imposing personal liability on the

member(s) or manager(s) of the company20

The certified question presented in this cases asks whether ldquoWest Virginiarsquos

version of the Uniform Limited liability Company Act codified at W Va Code sect 31B[-1shy

101] et seq afford[s] complete protection to members of a limited liability company against

a plaintiff seeking to pierce the corporate veilrdquo Applying our foregoing analysis to this

question we answer in the negative

IV

CONCLUSION

For the reasons set out above we answer the question certified to this Court

by the Circuit Court of Harrison County in the negative and hold that W Va Code

sect 31B-3-303 (1996) (Repl Vol 2009) permits the equitable remedy of piercing the veil to

20Because we are addressing a certified question we do not apply our holding to the case sub judice to determine whether the LLC veil should be pierced in this instance Such a determination must be made by the circuit court

30

be asserted against a West Virginia limited liability company Furthermore to pierce the veil

of a limited liability company in order to impose personal liability on its member(s) or

manager(s) it must be established that (1) there exists such unity of interest and ownership








Certified Question Answered

31

SYLLABUS BY THE COURT

1 ldquoThe primaryobject in construing a statute is to ascertain and give effect

to the intent of the Legislaturerdquo Syllabus point 1 Smith v State Workmenrsquos Compensation

Commissioner 159 W Va 108 219 SE2d 361 (1975)

2 ldquoWhen a statute is clear and unambiguous and the legislative intent is

plain the statute should not be interpreted by the courts and in such case it is the duty of the

courts not to construe but to apply the statuterdquo Syllabus point 5 State v General Daniel

Morgan Post No 548 Veterans of Foreign Wars 144 W Va 137 107 SE2d 353 (1959)

3 ldquoA statute that is ambiguous must be construed before it can be appliedrdquo

Syllabus point 1 Farley v Buckalew 186 W Va 693 414 SE2d 454 (1992)

4 ldquoIn the interpretation of statutory provisions the familiar maxim

expressio unius est exclusio alterius the express mention of one thing implies the exclusion

of another appliesrdquo Syllabus point 3 Manchin v Dunfee 174 W Va 532 327 SE2d 710

(1984)

i



company















ii




iii

Davis Justice







I










1




















2



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31



company















ii




iii

Davis Justice







I










1




















2



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31




iii

Davis Justice







I










1




















2



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31

Davis Justice







I










1




















2



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31




















2



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31



















3




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31




















4















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31















5

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31

II

STANDARD OF REVIEW









analysis

III

DISCUSSION






6













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31













7















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31















8













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31













v Meek 132 W Va 373 386 52 SE2d 740 747 (1949))




9















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31















10

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31

















11















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31















12


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31


Company
















13











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31











v Flynn 382 Ill App 3d 952 960 (2008))








14











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31











15






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31






16

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31

















17








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31








18


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31


question asking








325 amp 32816



(continued)

19








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31








1 Fraud






20






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31






cautioned that





21





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31





22








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31








(continued)

23




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31




Bowen 2004 WL 424501 at 2

24


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31


















25









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31









claims)


26



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31



factors included











27












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31












28











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31











788 320 SE2d at 523))









29












IV

CONCLUSION





30












31












IV

CONCLUSION





30












31












31

certified question answered

Documents